The same day a U.S. Senate conformation hearing begins for U.S. Supreme Court nominee Neil Gorsuch, the country’s high court will hear oral arguments in a Wisconsin property case that may require the justices to offer some clarity as to what constitutes a parcel of land in analyses of regulatory takings.
The case, Murr v. Wisconsin, stems from a dispute between St. Croix County and a group of heirs who were bequeathed lakefront land along the St. Croix River, just east of Minneapolis and St. Paul, Minn.
The case is up for arguments on March 20.
The Murrs are being represented by the Pacific Legal Foundation, a libertarian public-interest law firm that litigated two prominent cases that are now fixtures in property-law classes: Nollan v. California Coastal Commission and Palazzolo v. Rhode Island.
St. Croix County is being represented by Harvard Law Professor Richard Lazarus and Remzy Bitar of Waukesha-based Arenz, Molter, Macy, Riffle & Larson. Wisconsin is being represented by Attorney General Brad Schimel and Solicitor General Misha Tseytlin.
The Murrs are challenging St. Croix County’s decision to reject a zoning variance that would have let them sell a vacant part of their land. They sued the state and county in 2013, alleging that a regulatory taking had occurred and that they should be compensated for the county’s decision and its effects on the value of their property.
The state and St. Croix County argued that, among other things, the Murrs’ claim had been made too late. They also contended that no taking had occurred because the property could still be used in beneficial ways.
St. Croix County Circuit Court Judge Scott Needham disagreed, finding that the Murrs’ claim was made too late and that local regulations had not deprived the Murrs of all substantial use of their property.
The District 3 Court of Appeals agreed with Needham, affirming his decision in 2014. The Murrs appealed to the Wisconsin Supreme Court, which declined to hear the case in 2015.
They then turned to the U.S. Supreme Court, which voted in January 2016 to take up the appeal.
At issue is whether the Murrs’ parcels should be considered separately or together in the takings analysis. In deciding that question, the justices may also choose to clarify the regulatory takings analyses laid out in Penn Central Transportation Co. v. City of New York and Lucas v. S.C. Coastal Council. That last decision was written by late Justice Antonin Scalia, the justice whom Gorsuch has been tapped to replace.
Penn Central lays out a balancing test for courts to use in deciding whether a regulatory taking has occurred. Lucas held that if a regulation extinguishes all economically productive uses of land, the state must compensate the property owner. However, the court has not weighed in on how to analyze takings involving adjacent parcels that are owned by the same property owner.
Various organizations around the country have filed 20 amicus briefs in the case since the Murrs filed their petition of certiorari to the nation’s highest court in August 2015.
Thirteen of the briefs call on the court to side with the Murrs, whereas seven urge the court to side with the county and Wisconsin. Submissions came from the Wisconsin Relators Association, the California Cattlemen’s Association, the American Planning Association and a group of 12 property law professors from schools such as Cornell University and Georgetown University.
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